In re S.P.

Supreme Court of West Virginia

April 10, 2017

In re: S.P. and D.C.-1

Mercer
County 14-JA-130-D3 & 14-JA-131-D3

MEMORANDUM DECISION

Petitioner
Father D.C.-2, by counsel P. Michael Magann, appeals the
Circuit Court of Mercer County's May 11, 2016, order
terminating his parental, custodial, and guardianship rights
to S.P. and D.C.-1.[1] The West Virginia Department of Health and
Human Resources ("DHHR"), by counsel S.L. Evans,
filed a response in support of the circuit court's order.
The guardian ad litem ("guardian"), Rockwell Seay,
filed a response on behalf of the children supporting the
circuit court's order. On appeal, petitioner argues that
the circuit court erred in failing to extend his improvement
period or impose a less-restrictive dispositional alternative
before terminating his parental, custodial, and guardianship
rights.[2]

This
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the circuit court's order is appropriate under
Rule 21 of the Rules of Appellate Procedure.

In
September of 2014, the DHHR filed an abuse and neglect
petition against the parents. Petitioner is the biological
father of D.C.-1 and the step-father of S.P. According to the
petition, the DHHR received a referral in July of 2014 that
alleged the parents arrived at a local hospital where
petitioner complained of trouble breathing. According to the
DHHR, petitioner was visibly intoxicated, slurred his words,
and was unable to maintain his balance or comprehend what the
staff was saying to him. The mother was also described as
stumbling and generally displaying signs of intoxication. The
mother admitted to having one beer while drinking with
petitioner and indicated that the parents engaged in domestic
violence when drinking. Thereafter, petitioner became irate
and aggressive toward the mother in the hospital.
Accordingly, the DHHR implemented a protection plan to which
both parents agreed. In August of 2014, a provider arrived at
the home to conduct parenting services but found the parents
arguing and observed them to be under the influence.
Petitioner denied drinking and expressed no desire to change
his habits. The mother told the provider about domestic
violence in the home, in addition to her mental health issues
and suicidal ideations. In September of 2014, the provider
returned to the home to find the parents under the influence
in the children's presence. Additionally, the maternal
grandmother, who resided in the home, told the provider about
ongoing domestic violence in the home as well as a vertical
cut on the mother's wrist. At this point, the DHHR took
emergency custody of the children. As such, the petition
alleged issues of domestic violence and substance abuse in
the home.

In
October of 2014, the circuit court held an adjudicatory
hearing, during which petitioner stipulated to domestic
violence and substance abuse. The circuit court thereafter
granted him a post-adjudicatory improvement period. From
January of 2015 until April of 2015, the parents wore alcohol
monitoring units and reportedly did well while subject to
monitoring. In fact, the children were returned to the
parents' custody during this time.

In June
of 2015, petitioner was arrested following two separate calls
about possible domestic violence and public intoxication.
Upon arriving at the scene, a police officer observed
petitioner attempting to leave the residence. The officer
detained petitioner and noted that petitioner was highly
intoxicated. According to the officer, a family member told
him that petitioner choked the mother. The mother
corroborated this and the officer observed redness on her
neck, although she declined to give a formal statement or
cooperate in petitioner's prosecution. The parents later
denied domestic violence occurred during this incident, and
the circuit court subsequently removed the children from the
home again. At a later multidisciplinary team
("MDT") meeting, both parents continued to deny
that the incident involved domestic violence and minimized
their substance abuse before leaving the meeting early.
Although petitioner was eventually charged criminally with
domestic battery, the parents later stated that the incident
stemmed from an issue with the mother's mental health
that required petitioner to restrain her from running into
traffic. In July of 2015, the circuit court granted the
parents improvement periods as disposition.

In
December of 2015, the circuit court held a dispositional
hearing during which it heard testimony from several service
providers. Although the circuit court found that there was
sufficient evidence to terminate the parents' parental
rights at that time, it instead granted the parents
additional time to comply with services. Specifically, the
circuit court directed petitioner to avail himself of the
services recommended by a substance abuse counselor, which
included mental health intervention, completion of a
batterer's intervention program, and services to address
his substance abuse, among other recommendations.

In
March of 2016, the circuit court held a second dispositional
hearing, during which petitioner admitted that he did not
complete the batterer's intervention program and missed
additional drug screens. Specifically, petitioner missed the
last three classes of the program and twelve drug screens.
Petitioner also admitted to consuming alcohol since the prior
dispositional hearing. Further, petitioner admitted that he
had not completed any substance abuse treatment because he
was unaware he needed such counseling. Again, the circuit
court deferred ruling on disposition and scheduled a hearing
for April 22, 2016. At the final hearing in April of 2016,
the circuit court ultimately terminated petitioner's
parental, custodial, and guardianship rights.[3] It is from the
resulting order that petitioner appeals.

The
Court has previously established the following standard of
review:

"Although conclusions of law reached by a circuit court
are subject to de novo review, when an action, such
as an abuse and neglect case, is tried upon the facts without
a jury, the circuit court shall make a determination based
upon the evidence and shall make findings of fact and
conclusions of law as to whether such child is abused or
neglected. These findings shall not be set aside by a
reviewing court unless clearly erroneous. A finding is
clearly erroneous when, although there is evidence to support
the finding, the reviewing court on the entire evidence is
left with the definite and firm conviction that a mistake has
been committed. However, a reviewing court may not overturn a
finding simply because it would have decided the case
differently, and it must affirm a finding if the circuit
court's account of the evidence is plausible in light of
the record viewed in its entirety." Syl. Pt. 1, In
Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d
177 (1996).

Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d
873 (2011). Upon our review, the Court finds no error in the
circuit court's denial of petitioner's motion for an
extension to his improvement period or in its termination of
his parental, custodial, and guardianship rights.

According
to petitioner, he was mostly compliant with services and
exhibited a strong bond with his children. As such, he argues
that the circuit court erred in failing to extend his
improvement period or impose a less-restrictive dispositional
alternative. We do not agree. According to West Virginia Code
§ 49-4-610(6), a circuit court may extend an improvement
period when, among other factors, "the court finds that
the [parent] has substantially complied with the terms of the
improvement period . . . ." The record on appeal shows
that petitioner failed to substantially comply with the terms
of his improvement period. Specifically, petitioner admitted
that he failed to complete the batterer's intervention
program and missed twelve drug screens during his improvement
period. Moreover, petitioner admitted that he took no steps
to address his substance abuse issues that persisted
throughout the proceedings. This is in spite of the circuit
court having previously declined to terminate his parental,
custodial, and guardianship rights at an earlier
dispositional hearing so that petitioner would have
additional time to comply with these very services. As such,
it is clear that petitioner failed to substantially comply
with the terms of his improvement period, and the circuit
court did not abuse its discretion in denying petitioner an
extension of the same.

Similarly,
the circuit court did not err in terminating petitioner's
parental, custodial, and guardianship rights. Again,
petitioner's sole argument is that he mostly complied
with services and established a strong bond with the
children. However, as outlined above, petitioner failed to
complete the services offered despite the circuit court
granting him an improvement period as disposition in order to
show compliance with these specific services. According to
West Virginia Code § 49-4-604(c)(3), a circumstance in
which there is no reasonable likelihood the conditions of
abuse and neglect includes one in which

[t]he abusing parent . . . [has] not responded to or followed
through with a reasonable family case plan or other
rehabilitative efforts of social, medical, mental health or
other rehabilitative agencies designed to reduce or prevent
the abuse or neglect of the child, as evidenced by the
continuation or insubstantial ...

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